By Kathlynn Smith
Kathlynn Smith is a partner at Hunt Ortmann in Pasadena, California. She specializes in construction and general business litigation. Kathlynn has successfully represented owners, developers, contractors, and subcontractors in a wide variety of matters relating to contract administration and construction claims. She places a particular emphasis on construction claims involving payment disputes, delay and disruption, false claims, construction defects, and actions on payment and performance bonds. She has successfully litigated and resolved complex construction disputes involving multimillion dollar claims.
Kathlynn is the coauthor of the “Smart Girls’ Guide To Construction Law” and architect of the “Smart Girls” initiative directed at women-owned or operated companies in the construction industry. The Smart Girls’ mission is to advance and support the success of women in the construction industry. Learn more about the Smart Girls and the “Smart Girls’ Guide” at http://smartgirlsconstruction.com.
There are countless qualities that great lawyers have in common. The one that is loudly touted, but incredibly hard to achieve, is objectivity. Putting aside whether true objectivity is possible (or desirable, for that matter), I have found that staying focused and above the fray is easier said than done.
To understand where I’m coming from, you should know a little about me. I am a true competitor. I enjoy difficult tasks and underdog odds. I know my voice and use it—often. And I love—and I mean love—that moment when you know you’ve out maneuvered your opponent and victory is in your grasp. These qualities are what make me a great advocate. The problem with all us competitors—and you know you’re one, too—is that we are susceptible of losing sight of our role to be objective.
As competitors, we easily transform our cases into battles that end in complete victory (or loss). Unfortunately, the hallowed halls of justice rarely allow for such satisfying absolutes. Even when you have both the facts and the law on your side, the path to victory is peppered with obstacles and defeats—whether inflicted by opposing counsel or the court. When you’ve lost sight of the boundary between you and your client or a legal position and your value as an advocate, those setbacks can be demoralizing.
There are, however, some simple truths that will help you avoid some of the common traps that can lead to a breakdown in objectivity. First, your client’s problems are not your problems. Although it seems like a simple proposition, anyone in the trenches with her client will feel the dividing walls start to crumble. From this is borne either impassioned advocacy or sheer frustration. Since your goal is to find your client a speedy (and affordable) resolution, don’t spend your energy on unproductive emotions.
Second, opposing counsel’s job is to get under your skin—it’s not personal. I have seen attorneys take statements made by opposing counsel in an effort to advocate for their clients’ rights personally. With a clear focus on your client’s goals, you can effectively address—and neutralize—the other side’s position. If you play their game (and, let’s be clear, it is a game), you lose perspective. Once you lose perspective, you are less persuasive and risk diluting the merits of your case with a perceived grudge match between attorneys.
Finally, pride kills objectivity. Pride can be a positive driving force or it can impair your judgment. Identifying when you are advocating a position out of reason or out of pride is not always clear, especially in the heat of battle. Always remember that your goal is to help your client solve its problems. Don’t let pride stand in the way of that goal.
We as lawyers “practice law” because no matter where we are in our career, we are still working on it. Every lawyer—regardless of level—should “practice objectivity” because it makes this profession and our life within it so much more satisfying.
Vol. 42 No. 9